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Editors --- "DownUnderAllOver: Developments around the country" [2004] AltLawJl 60; (2004) 29(4) Alternative Law Journal 200

Developments around Australia

Federal Developments

Indefinite detention, international law and the Constitution

The recent decision of the High Court of Australia in Al-Kateb v Goodwin [2004] HCA 37 held that the Migration Act 1958 will allow the detention of an unlawful non-citizen even where there is no present reasonable prospect of the person being deporte.d. The judges split 4 to 3 (McHugh, Hayne, Callinan and Heydon JJ; Gleeson CJ, Gummow and Kirby Jj dissenting).

The majority held that there were heads of power such as the aliens power and the defence power under which people could be detained indefinitely without such detention being considered punitive. Characterised as non-punitive, such detention was held not to violate Chapter Ill of the Constitution, which prohibits arbitrary detention.

Justice McHugh also attempted to limit the influence of international law in interpreting the Constitution. Whilst acknowledging the principle of interpretation that principles of international law can be taken into account in interpreting legislation is too well entrenched to be overturned, McHugh J attempted to limit the application of this principle to the Constitution. He argued that any developments in international law (as opposed to international legal developments more generally) since 1900 should not be taken into account as in essence this would amend the Constitution.

There are a number of problems with this line of reasoning. The most obvious is that this principle of interpretation only provides for international law to be taken into account where there is ambiguity. It does not require a particular legislative or constitutional provision to be overturned where that provision is clear in its terms just because it is inconsistent with international law (Horta v Commonwealth).

It is also unclear why this principle of interpretation should apply only to legislation and not to the ConstttutJon, let alone why developments in international law, as distinct from developments in the laws of other countries, should be singled out as a source of law not to be taken into account. The limitation proposed by McHugh j of only taking into account international law pre-1900 is also problematic, as most principles of international law have since evolved, generally considerably for the better.


Proposals to reform defamation laws (again!)

Twenty years after then Attorney General, Gareth 'Champagne above the Timor Gap' Evans announced that a national defamation code was 'imminent', we still have an extraordinary eight separate defamation law regimes based on a cat's. lunch of the common law and state-based legislation. Our defamation

'system' rewards forum shopping and encourages SLAPP (strategic litigation against public participation) suits by dodgy characters, notably developers, against anyone daring to speak out against them. It is widely regarded, with considerable justification, as a system for the wealthy, including corporations, to get wealthier.

In July 2004, the Commonwealth Attorney General's Department released the 'Revised outline of a possible national defamation law' to provide consistency across the land. This follows up a March

2004 discussion paper. The major proposals are:

• the cause of action to be available -

-for three years to the family or legal representative of a defamed deceased

-to members of a group in certain circumstances

-to corporations, but the traditional common law limitations on recoverable damages would be maintained

• defences to include:

-truth AND that it relates to a 'subject of public interest'

- honest opinion in relation to a subject of public interest and based on (ie having a rational connection to) facts that were substantially true or covered by the defences of absolute privilege (eg comments made in court or Parliament), qualified privilege (eg comments made in response to defamatory comments from the defamed, or comments reasonable in all the circumstances), fair reporting or triviality

• juries to have a role in deciding whether a publication is defamatory and whether a defence is available, but no role in awarding damages

• ADR to be encouraged.

The proposed Bill seems to provide slightly broader protections for publishers (eg newspapers) and, to some extent, puts more emphasis on restoring the plaintiffs reputation and less on damages. But it still places the onus on the defendant to prove there was no defamation or to show a defence exists. In other words, it is hard to see how SLAPP suits will be reduced and freedom of speech enhanced under this legislation.

For his part, the Commonwealth Attorney General, Philip Ruddock, has poured scorn on a discussion paper on defamation reform released by the States and Territories at the Standing Committee of Attorneys General in late july 2004. In Ruddock's opinion 'they are not serious about, or capable of, bringing about true uniformity in defamation law'. It seems none of the relevant governments are serious about reforming the law of defamation to promote freedom of speech and thereby enhance democracy itself. If they were they would work together to enact Free Speech Victoria's proposals:

• freedom to speak about corporations, including the prevention of corporations suing in defamation

• freedom to speak on matters of public importance. In the absence of malice, no action should lie where a statement is main the course of public debate on a matter of public interest. Malice would be for the plaintiff to prove

• freedom to speak about performance of public officials, provided there is no malice

• no general damages, except where malice is proven.

You can view the proposals on the Attorney General's website:

<>. Comments on the proposed Bill can be made until 31 October 2004.

GLENIN OSBOLDSTONE is a legal officer.

New South Wales

Hear both sides? Not for prisoners

The High Court's failure to protect the human rights of New South Wales prisoners was identified by Kirby J in his recent dissent in Muir v The Queen [2004] HCA 21. An unrepresented man was denied the right to appear before the Court on his application for special leave to appeal his sentence for certain federal offences. His perfectly understandable reason was that he was incarcerated in Goulburn Correctional Centre. Without a court order, the prison authorities had refused to deliver him to the Court to make oral submissions in support of his application. Mr Muir filed a notice of motion seeking an order that he be produced from prison to appear before the Court.

The Court dismissed Mr Muir's notice of motion by a 2 to 1 majority on the basis that, in applications for special leave to appeal, written submissions are the primary method by which parties convince the Court of the merits of their case and that oral argument by unrepresented parties rarely assists (McHugh and Hayne J). McHugh J directed that the application for special leave be determined on the papers and, not surprisingly, Mr Muir was subsequently refused special leave.

Importantly, Kirby J's dissenting judgment highlights the human rights issues arising from the Court's willingness to decide such applications in the applicant's absence. The parties were clearly not on an equal footing, given the pertinent observation that both a Queens Counsel and a junior counsel represented the Comm'C>nwealth Director of Public Prosecutions, while the applicant's seat at the bar table was empty. According to Kirby J, justice required that the applicant be permitted to make oral submissions either in person or by video link from prison. He insisted that oral submissions could assist in the determination of special leave applications and that denying the applicant the opportunity to present oral submissions unfairly discriminated against him and afforded him treatment less favourable than that given to applicants for special leave who are not in prison, those who can afford legal representation or those who are in prisons where video link facilities are provided (which includes prisons in Queensland, Western Australia and South Australia). In addition, he pointed out that denying the applicant an opportunity to present his case might be contrary to Australia's obligations under the International Covenant on Civil and Political Rights (ICCPR).

Unfortunately for inmates of New South Wales prisons, it appears from this decision that the High Court prioritises the swift and expedient treatment of special leave applications over the protection of universal human rights contained in the ICCPR with regard to equality before the law.

JULIE WHITE is a NSW lawyer.

Northern Territory

Bail to undergo customary punishment

This controversial issue resurfaced before the new NT Chief Justice Brian Martin on a bail application by Jeremy Anthony, who was charged with the manslaughter of his wife. Anthony, a 23 year-old Walpiri man from Lajamanu, south west of Katherine, lived according to his cultural traditions.

Anthony's counsel suggested he be released to the Lajamanu community to reside with his uncle, or with his older sister in Ngukurr, east of Katherine and some distance from Lajamanu. Argument centred on his need to be free 'for any lawful purpose' pursuant to s 24(1)(b)(iii) of the Bail Act 1982. This boiled down to the question: was it lawful to grant bail in full knowledge that the applicant would, if bailed to Lajamanu, be subjected to traditional punishment?

It was submitted that he needed to be at liberty to meet his cultural obligations to undergo traditional punishment. The exact details had not been finalised but he would be speared in each leg and blows struck to his back with a nulla nulla (fighting stick). He consented to the punishment, not least because of his fear that if he did not he might suffer a fatal curse whilst on remand. An additional concern was that in the absence of customary punishment, his family might suffer reprisals from the deceased's family and that there would likely be ongoing trouble between them. Counsel submitted that the proposed punishment was lawful since it was to be administered traditionally by people recognised in the community as having the authority to do so.

The Chief Justice observed that the punishment was not 'lawful' in the sense of being administered by a person employed by the state. He noted that although community elders consented to a medical assistant and a police officer being present during punishment, the police officer would be placed in a very difficult position should he consider the punishment to be unlawful.

The Chief Justice indicated that in certain circumstances, a court might grant bail in terms that would allow lawful traditional punishment to take place. He said this would normally be punishment of a minor nature, rather than the proposed corporal punishment, which would normally result in, at the very least bodily harm, most likely grievous harm, and possibly death.

Evidence was heard that the injuries would result in considerable bleeding and pain and that the applicant would not be able to walk immediately afterwards, although he would start to get better in about two weeks. The punishment was not to be administered by elders, but they would supervise and guide the appropriate family members. The Chief Justice noted that those designated to inflict the punishment had no experience in the imposition of this type of traditional punishment

In these circumstances the Chief Justice considered that the proposed ceremonial punishment would involve the unlawful infliction of physical force, notwithstanding Anthony's consent and the elders' supervision. He concluded that the need to undergo traditional punishment could not be considered under s 24 as a 'need to be free for a lawful purpose'. He refused bail for the applicant to return to Lajamanu to undergo punishment,

but granted it on condition that he reside with his sister at Ngukurr, some 800 kilometres away.

Postscript: After the grant of bail, family members still residing at Lajamanu were forced to flee for fear of recriminations from the deceased's family. Anthony was released to Ngukurr and appeared at committal proceedings at the Katherine Court of Summary Jurisdiction. Following the adjournment of these proceedings he failed to return to Ngukurr, going to Lajamanu instead. Several days later he underwent 'payback' and was treated at Katherine District Hospital for nine wounds to his thighs and a broken arm. He was then formally remanded in custody and is awaiting trial in the Supreme Court.

RUTH BREBNER is a Northern Territory lawyer.


The animal cruelty state?

There has been a rash of Queensland animal cruelty cases reported in the state and national media in recent months, including the torture of kittens, the chewing of mice in a pub competition, the unauthorised shooting of domesticated horses, the beating of a dog with an axe, and alleged cruelty to a dugong. It's not clear whether this increased attention reflects an underlying increase in animal cruelty offences in Queensland, or more effective use of the media by RSPCA Queensland. Two of these cases are particularly noteworthy.

In May, six soldiers based at Townsville were convicted of torturing a litter of kittens, and fined $2000 each. The Queensland Police Commissioner has instituted an appeal against the leniency of the sentences. After pressure from the RSPCA and the wider community, the Army later discharged the soldiers. In another case, the RSPCA is reportedly Investigating allegations of cruelty inflicted on a dugong caught near Bundaberg. The dugong was said to have been captured according to traditional Indigenous methods involving the use of a harpoon, and subjected to cruelty when, still alive, the harpoon was cut out of the creature's head.

These cases raise important issues about the application of animal cruelty legislation. The Townsville case exposes the considerable gap that can exist between the law on the books and the law in action. In Queensland, the maximum penalty under the Animal Care and Protection Act 2001 for a cruelty offence is two years imprisonment and/or a $75,000 fine. Given the serious and aggravated nature of the offences in the Townsville case, it is difficult to conceive of conduct that would attract a penalty of even half the maximum. The Queensland Police Commissioner has stated that a reason for appealing the penalties in this case, apart from their manifest inadequacy, is a lack of comparative cases against which to determine appropriate sentences.

The Bundaberg case provides an intimation of the cultural conflict potentially present in the animal welfare area. The legislation does not apply to acts done by Indigenous people as part of Indigenous tradition or custom. The hunters involved have stated that the RSPCA, by its investigation, is interfering with Indigenous hunting rights and deny that the dugong was alive when the harpoon was removed. The RSPCA alleges that the cruel act was not part of any relevant Indigenous tradition or custom. To a considerable extent, therefore, the parties appear to be talking at cross-purposes. A more challenging issue would arise if a manifestly cruel practice was found to be well established in custom, and therefore outside the scope of animal welfare legislation.

STEVEN WHITE teaches law at Griffith University.

South Australia

Nuclear fallout, or political fallout?

On 24 June 2004 the full bench of the Federal Court quashed a prior order, which had granted the Federal Government the right to use extraordinary powers to access and acquire land in South Australia for use as a depository for the nation's low-level radioactive waste (State of South Australia v Honourable Peter Slipper MP [2004] FCAFC 164).

This ruling is the latest in a series of claims and counter claims over nuclear waste and a typical example of ways in which the courts are used to achieve political objectives. On several occasions, the Federal and South Australian Governments had reached impasses on this issue. This most recent appeal was aga1nst the Federal Government's claim that, on the score of urgency, it had the capacity to legally acquire South Australian land. The Full Court denied the validity of the urgency claim, allowed the appeal and ruled that the Federal Government pay the legal costs of both the appeal and case at first instance.

There have been claims that narrow political motives are clouding the far more significant environmental issues. Federal plans to resolve the nation's nuclear waste problem have been claimed to be driven more by party political than environmental interests. The political realities of these plans are allegedly about (a) saving seats in some NSW constituencies, (b) a powerful lobby promot1ng a new Atomic Reactor at Lucas Heights in NSW, and (c) allaying the fears of voters in that area and the populations of greater Sydney and NSW generally. On this view, the Federal Government wanted above all to assure those voters that any future nuclear waste together with what had already been accumulated -both locally and nationally – would be safely removed to a central site, the most favoured proposed location being in SA.

It was suggested that the crass political aspects of this strategy were being dressed in ethical arguments about shared responsibility, the greater general safety and the pragmatic convenience of having only one isolated national dump.

The debate over this proposal has become a major political conflict. It seems, for the present at least, that the South Australian Government has won the politico-legal battle. Despite Science Minister McGauran's declaration that, come what may, the Commonwealth would have its way eventually, through new legislation if necessary, the Prime Minister, announced in Adelaide recently that SA and all states and territories will now be responsible for their own nuclear waste. Let us wait until after the impending election to see if this is the end of the nuclear waste debate.

IAN DOUGLAS-IRVING teaches legal studies at Flinders University.


Corrupt cops

This column has previously highlighted significant compensation payouts from the public purse to victims of police administered

violence. These payouts resulted from civil actions brought by the victims of such incidents as the 'Tasty' nightclub raid and the Richr1ond Secondary College protest where potentially fatal press re point holds were used. Disturbingly violent actions by policei1 (most not wearing ID badges) on protesters were also witnessed at the S11 protests in Melbourne, including overhead baton1 attacks, punching to the face and stomping with horses.

It seems these activities were just the tip of the iceberg from the worst elements of our boys in blue. A disturbing array of revelations over the last few months have hammered yet more nails into the coffin of public confidence in 'VicPol' and strengthened calls for a royal commission and a permanent, independent, anti-corruption commission in Victoria.

The revelations and allegations include:

• hundreds of officers facing criminal charges ranging from assault and theft, to conspiracy to pervert the course of justice and conspiracy involving commercial drug trafficking

• thefts from secure police evidence rooms and the leaking of personal details of police informers, resulting in several murders'

• assaults on and threats to kill corruption investigators (including bullets in the mail)

• whistleblowers (or 'dogs') targeted by the Brotherhood's entrenched culture of silence

• possible links to the 27 (and counting?) 'underworld' murders in Victoria

• disbanding of the corruption-riddled drug squad

• involvement in organised paedophilia and child pornography rackets as well as mishandling of child sex abuse investigations

• large numbers of outstanding fines for traffic offences by off- duty officers.

These revelations are not overly surprising, given the levels of corruption revealed by the various royal commissions and inquiries in NSW, Queensland and, most recently, Western Australia, and given allegations in Ray Haser's two-volume Victoria Police Corruption. What is surprising has been the denial by successive Victorian governments of the need for an independent inquiry into our fuzzy thin blue line, as if only other $1:ates had a problem with systemic police corruption. The festering sore is well and truly in the open now. Even the Liberals, on 9 June 2004, introduced a motion in the Legislative Council supporting the immediate establishment of a royal commission into police corruption and a standing anti-corruption commission.

Premier Bracks and the Police Minister continue to fob-off these requests, pointing to the beefed-up powers given to Ombudsman, George Brouwer, and to the Chief Commissioner of Polite, Christine Nixon, as well as amendments to the Sentencing Act 1991 allowing the courts to require police convicted of corruption to repay their superannuation.

However, the Government's request for the Ombudsman's office to be given phone-tapping powers was turned down by the Commonwealth on the basis that such an office could not be trusted with those powers. As at the date of writing, the Victorian Government is continuing to press the Commonwealth for those powers. As though prompted into action by the weight of corruption allegations in Victoria, Canberra then set up its own anti-corruption watchdog to supervise the Australian Crime Commission, the Australian Customs and the Federal Police, telling Victoria to do the same.

Accordingly, the Ombudsman's office continues to be hamstrung in its investigative capacity, as it must rely, to a significant extent, on investigations by the police force itself This scenario has always been problematic, not the least because of the public perception of lack of independence and teeth. Hopefully, the Government will finally bow to public pressure (81% support in a recent AC Nielsen poll) and set up a royal commission or similar independent body. To help them with the model, a working party has been established, not by the Government but by Monash University's Law Dean, Arie Frieberg, and Head of Criminology, Associate Professor Colleen Lewis. Including members of the Victorian Bar, the Law Institute and of the wider community, the working group will develop proposals for a suitable anti-corruption body and present them to the Victorian Government in the near future.

SN OOPDOGG is a Melbourne lawyer.

Western Australia

Mickelbergs' convictions quashed

In the two decades since the infamous 1982 Perth Mint Swindle, the brothers convicted of the theft of over $650,000 in gold bullion have maintained that they are innocent. On 2

July 2004, Ray and Peter Mickelberg were finally vindicated, when the Western Australian Court of Criminal Appeal upheld their eighth appeal against conviction. The Court quashed the convictions and no retrial was ordered. In a 2 to 1 decision, Chief justice Malcolm and Justice Steytler agreed that the Mickelbergs' convicitons should be overturned. In a dissenting judgment, Justice Murray disagreed, stating that there had been no miscarriage of justice.

Following their convictions in 1983, Ray Mickelberg served eight years of a 20-year sentence, while Peter Mickelberg served six years of a 14-year sentence. The third brother convicted over the swindle, Brian Mickelberg, had his conviction overturned after eight months in prison. He died in an aircraft crash in 1986.

The latest appeal arose out of a bizarre tum of events in 2002 when former detective, Tony Lewandowski, confessed to framing the brothers. Lewandowski stated that he and his superior, former Perth CIB chief, Don Hancock, had fabricated evidence in order to frame the three brothers. The appeal centred on Lewandowski's confession that notes of interviews had been fabricated, and his claim that he and Hancock had given false evidence and that Hancock had beaten Peter Mickelberg. In his reasons for decision, justice Steytler stated that this fresh evidence cast doubt over the police investigation and the police evidence of admissions, to the extent that there was a significant possibility that the jury reached its verdict on the basis of false evidence.

The Mickelberg brothers are expected to lodge an application for compensation with the WA Government. However, whether this is the last instalment in this saga remains to be seen, particularly given comments by the Attorney General, Jim McGinty. McGinty said that the Court's split decision may mean that the controversy surrounding the case will continue. Further, Assistant Police Commissioner Mel Hay made public statements that there is still an abundance of evidence pointing to the Mickelberg's guilt.

ALANA McCARTHY is a judge's associate in Perth.

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